"I think I was trying to suggest something about the duality of man, sir ... the Jungian thing, sir."
Private Joker, Full Metal Jacket

Monday, February 18, 2013

An interesting filing in the state Supreme Court

Last week's filing by
Justice Bradley was ostensibly an order recusing herself on a disciplinary case
involving Justice David Prosser. That she would step aside is extraordinary
only in the fact that it took her ten months to get around to it. It was clear
from the get go that she should not sit on a matter in which she is the
complainant.

But the nature of filing
- what Justice Bradley sought to say - was extraordinary and revealing.

What she wrote was
extraordinary because it had little or nothing to do with whether she ought to
recuse herself. It largely consists of a reiteration of her allegations with
Justice Prosser joined to an expression of displeasure with the law governing
the discipline of Supreme Court justices and annoyance that the statement of a
number of her colleagues who witnessed the incident with Justice Prosser don't
completely corroborate her own.

As I have written
before,there is no support in the witness
statements of any of the other justices - including the Chief Justice - that
Justice Prosser "choked" Justice Bradley. Indeed, one can read
Justice Bradley's own statement as suggesting that this did not occur. All seem
to agree that Justice Bradley charged or rapidly approached Justice Prosser –
perhaps with her fist or finger raised.

Beyond that, the
statements tend to depart on very subjective points in which the witness
characterizes the volume of some one's voice or the rapidity with which an
action was taken. Depending on which version one credits, the incident reflects
poorly on Justice Bradley or both justices. If you are inclined to the latter
view, it is possible to conclude that Justice Prosser was more at fault than
Justice Bradley, but that is far from clear. One might well reach the opposite
conclusion. It is possible that one might conclude that Prosser (or Bradley)
ought to be disciplined, but that result is not foreordained.

It is understandable
that Justice Bradley is committed to her version of events and upset that
others don't see things the same way. What is important for purposes of recusal
is the resolving the conflicts will reflect on her testimony (which is not
undisputed) and even on whether she ought to be subject to discipline. Perhaps
all of those questions should be resolved in her favor. But she can't be the
one to decide that.

Normally, a judge in her
position would simply step aside without comment on the merits. He or she would
not use a recusal order as an occasion to editorialize. Justice Bradley is
quoted as saying that her filing is a response to Justice Roggensack’s
statement that the court is “doing fine.” But judges normally don’t use court
filings to weigh in on their colleague’s campaigns.

The filing is,
nevertheless, revealing. The filing
demonstrates the wisdom of the general rule that someone ought not to be a
judge in his or her own case.

Here's an example.
Justice Bradley is upset that her colleagues' witness statements will not
concede what Justice Prosser has admitted. "They deny," she writes, "what has already been admitted." But a careful - no, even a cursory -
reading of the witness statements of Justices Roggensack, Ziegler, and Gableman
all reveal consistency with Prosser's statement. Each of them says that Justice
Bradley charged Justice Prosser with her fist or finger raised. He put up his
hands in response and his hands came into contact with her neck but did not
close, i.e., he did not choke her.

(In any event, it was not for these witnesses to base their own version of events upon the statement of either of the participants. They were asked to relate what they saw.)

Depending on the
details, one might take these statements to warrant no discipline, discipline
against either Justice Prosser or Bradley alone, or discipline against both Justices.
But they are not inconsistent with Justice Prosser's statement - at least not
one the critical point identified by Justice Bradley.

That she is unhappy with them is all too human. Again, she may be right and they may be wrong. But the filing also demonstrates why she was correct to recuse herself.

Can you give us an analysis of Judicial Commission v. Carver, 192 Wis.2d 136 and why it might apply to what Justice Bradley did in this writing? It is my understanding from the Carver Case that SCR 60.16 prohibits a judge from giving commentary about a case before a recusal. Thanks for any analysis.

About Me

I am President and General Counsel of the Wisconsin Institute for Law & Liberty and an adjunct professor of law at Marquette University Law School. The views expressed here are my own and not those of WILL or Marquette. They are offered in my personal capacity.